The New Jim Crowby Patricia
Goldsmith
www.dissidentvoice.org
May 9, 2005

The
marriage license did not exist before the Civil War. George and Martha
Washington, Abe Lincoln and Mary Todd, and every other American up to that
point in time got married in a church. Why at that exact moment in time, you
may wonder for half a second, before you realize the obvious answer: to stop
the world from turning the color of café au lait. That makes the marriage
license the last extant vestige of Jim Crow in our society.

Of course, there had
been miscegenation from the very beginning. We now know for certain, from
DNA testing, that Thomas Jefferson had children with his slave, Sally
Hemming. Closer to our own point on the timeline, Strom Thurmond fathered a
child with a black woman who worked for his family in the segregated South.

Preventing the mixing
of the races -- most specifically the sexual mixing -- was the foundation
for an entire system of post-Civil War law devoted to excluding and
subjugating a class of people who had recently taken a giant leap forward,
in terms of legal standing and personal liberty. That was Jim Crow. Blacks
sat in the back of the bus, used separate water fountains, and went to
separate schools.

With the defeat of the
South and the abrupt ripping away of the elaborate social system of
repression and denial around slavery, the revealed reality of white
ownership of black human beings created the horrified -- and projected --
fantasy of the animalistic, hyper-sexual black buck suddenly free to return
the master’s favor by rampaging and raping the flower of Southern womanhood.
It was this particularly vile fantasy, based on collective white guilt, that
justified the lynchings and terror visited on freed blacks.

As with the original
Jim Crow laws, the new restrictions states are imposing on marriage are
occurring just as the possibility of recognizing age-old arrangements comes
into conscious social awareness.

Although historically
the penalty for homosexual acts has been violence and death, there are
nevertheless profound differences between the slave experience and any other
form of persecution. The right is buying up black evangelicals who can make
that point -- just as they’re getting a lot of Democrats at bargain basement
prices these days. They need as many African-Americans as they can get to
sit up on the dais for events like Justice Sunday.

Consider the Reverend
Ken Hutcherson, an African-American preacher from Redmond, Washington, who
has decided that, with God on his side -- and there can be no doubt that He
is -- The Black Man, as he affectionately refers to himself, can take on
Microsoft. Hutcherson hated white people before he found God -- and a white
wife and congregation. Now nothing and nobody will stop him from telling the
Truth. “You tell me what I went through as an African-American, when they
talk about discrimination, compared to what gays go through with
discrimination -- it’s the difference between night and day, not even close.
. . . They can stop choosing to do what they do, and they can hide it
anytime they want. They can hide their homosexuality.” (“A Megachurch’s
Leader Says Microsoft Is No Match,” New York Times, 5-2-05)

It is, perhaps, also relevant that a
groundbreaking study by the National Gay and Lesbian Task Force Policy
Institute and the National Black Justice Coalition shows that “black same
sex couples have more to gain from the legal protections of marriage, and
more to lose if states pass amendments banning marriage and other forms of
partner recognition. . . . The study finds that Black lesbian couples are
raising children at almost the same rates as Black married couples, and that
Black same-sex couples raise children at twice the rate of White gay
couples. They also earn less, are less likely to own a home, and more likely
to hold public sector jobs.” (“Black same-sex households: A report from the
2000 census,” Alain Dang and Somjen Frazer,
www.thetaskforce.org)

Still, there is a
grain of truth in what Hutcherson says, in that most of the people in the
gay pride movement have deliberately taken action to be publicly identified
as part of a hated group. It is a movement explicitly based on individual
sacrifice and specific, repeated, voluntary acts of self-identification.

One of my favorite
thinkers is Joan Nestle, founder of the Lesbian Herstory Archives, who
brought to life for me the stupendous bravery of lesbians in the ‘50s. I
noticed these women when I was growing up in small-town Michigan: the
strange person on the diner stool with the slicked back hair and thick male
glasses and clunky watch and -- jolt --breasts. I got away as fast as I
could. They scared me to death.

But Nestle writes
about something bigger than the institutional shaming -- the stigma of
mental illness, the fear of being scooped up by the vice squad and having
your name appear in the local paper, the life-destroying power of a
dishonorable discharge -- namely, the eroticism fueled by the raw courage it
took to cross that line. In a documentary about her life, Hand on the
Pulse, she recalls the falling-off-the-side-of-a-mountain romance she
experienced when a lover held her on her lap, looked her deep in the eyes,
and said, “They say I’m damned to hell if I do this,” then dipped her back
and kissed her.

What would you risk to be with the one you
love?

In 1970, gay people
rioted in the Stonewall bar when the vice squad showed up. In the ‘80s,
queers were Acting Up; in the ‘90s they were telling, asked or not. And just
two weeks ago, an NYU Law School student, Eric Berndt, publicly challenged
Supreme Court Justice Antonin Scalia with the question: “Do you sodomize
your wife?”

Berndt later explained
that he intended “to subject a homophobic government official to the same
indignity to which he would subject millions of gay Americans,” referring to
the fact that, had Scalia’s view prevailed in Lawrence v. Texas,
adult gay people could still be prosecuted for consensual sex in the privacy
of their own homes.

While Scalia finds no
implied right to privacy in the Constitution, he does find religion there,
in spite of 200 years of judicial consensus on the meaning of the
disestablishment clause.

In the fall of 2004, shortly after he began
his unprecedented public campaign to become Chief Justice, Scalia asked an
audience at an orthodox synagogue, “Do you think it’s [separation of church
and state] going to make Jews safer? It didn’t prove that way in Europe.” He
stopped short of saying the word, but others are saying it for him, in
describing the “slaughter” of the unborn: Holocaust. And if the time is
coming for judges to pay, as Tom DeLay has faithfully promised, you can be
sure that judgment is coming for the women who killed their babies. The
Attorney General of Kansas, following John Ashcroft’s example, is itching to
get his hands on confidential abortion records.

To disguise their
reliance on violence, now and throughout history, the haters have a
philosophy. It’s called fundamentalism. It’s not that they hate us, they
only hate the sin we commit. It’s not that they want to kick us in the
teeth, it’s that the Constitution must be construed in the strictest
possible way in order to prevent individual judges from acting on their own
personal desires. For that reason, they argue, it’s not important to have a
mix of views and opinions on the Court. In fact, there must be only ONE
view: a rigid letter-of-the-law, originalist interpretation that prohibits
action by the wicked, relativistic ego.

But if you take this
extreme position, it follows that one deviation for personal profit
invalidates all your lofty claims to answer to a higher law. In Scalia’s
case, that one exception is a doozie: Bush v. Gore. Scalia shocked
veteran court-watchers in 2000 by departing from his strict constructionist
philosophy, his often-reiterated passion for states’ rights, and his
commitment to writing decisions that contribute to the body of law, rather
than one-off, ad-hoc opinions. Antonin Scalia the man -- not his philosophy
-- made George W. Bush president.

A new Court that may
very well carry Scalia’s name is being formed. The world is about to change.
At this tipping point, we all have a moral choice.

In a recent interview
in The Advocate (“Tammy Lynn Michaels: Committed to love,” 4-29-05),
Melissa Etheridge’s partner, Tammy Lynn Michaels, talked about going through
Melissa’s cancer in the context of inequality, and concluded, “But you know
what, they can have the taxes and the health insurance and all of it.
Because at the end of the day, we have each other and that’s all that
matters.” Amen. If we remember God is love, we can save ourselves.

Patricia Goldsmith is a member of Long
Island Media Watch, a grassroots free media and democracy watchdog group.
She can be reached at:
plgoldsmith@optonline.net.